NETHERLANDS Trends and Developments Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
• Proportionality: is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee? In view of their contribution to the art, is it obvious to the skilled person from the patent publication how to apply the equivalent element (at the time of infringement)? • Reasonable legal certainty for third parties: does the skilled person understand from the patent that the scope of the invention is broader than what is claimed literally? • Novelty and inventive step: is the allegedly infringing product novel and inventive over the prior art? (ie, no successful Gillette/Form- stein defence)? This fourth step ensures that the scope of pro- tection cannot go so far that prior art, or non- inventive variants thereof, would fall within the scope of patent protection. This approach is in line with the English test for equivalence formu- lated by the English Supreme Court in Eli Lilly and Company v Actavis UK Limited and others – a case concerning the English part of the same European patent as the Pemetrexed case. The LD of The Hague answered all four ques- tions affirmatively, concluding that the patent was infringed by equivalence. Possibly this test might be adopted further in future cases under the UPC. However, it is important to note that the UPC’s approach to equivalence, particularly question four which assesses the novelty/obviousness of the alleged infringing product over the prior art, has not been entirely consistent. For example, the Düsseldorf LD in the SodaStream case of 31 October 2024 decided that if the patent in ques- tion distinguishes itself from the prior art in a par- ticular way, an interpretation which negates that distinction must be avoided. Therefore, there is
no room for a Gillette defence in infringement proceedings where the defendant has not coun- terclaimed for invalidity of the patent. Whereas question four assessed by The Hague LD implies that, at least in cases involving infringement by equivalence, a defendant may be able to raise a Gillette defence without the need to counter- claim for invalidity. This difference in approach between the LDs of the UPC illustrates that, while the UPC is still evolving, the differences in interpretation may lead to some uncertainty in future patent cas- es. It highlights the need for a nuanced under- standing of how different courts within the UPC system might handle issues of equivalence and infringement. It remains to be seen how these conflicting interpretations will evolve in future cases. The Use of Post-Published Evidence in Assessing Inventive Step The Dutch District Court of The Hague and the Court of Appeal have had to navigate the inter- pretation of the Enlarged Board of Appeal (EBA) decision G2/21, which addresses the role of post-published evidence in assessing inventive step. Post-published evidence refers to data or results published after the patent application, which can be used to demonstrate the techni- cal effect of the invention. In the cases of BMS v Sandoz and BMS v Teva, concerning the apixaban patent, the Dutch courts were asked whether Bristol-Myers Squibb (BMS) could rely on post-published evidence to support the inventive step of its apixaban com- pound. In 2022, the District Court of The Hague ruled that there was a reasonable chance that the patent in question would be invalidated in main
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